Cole v. Young

• Decision Date: 26 October 1954
• Docket Number: Civ. A. No. 2296-54.
• Citation: 125 F. Supp. 284
• Parties: Kendrick M. COLE, Plaintiff, v. Philip YOUNG, Chairman, United States Civil Service Commission, et al., Defendants.
• Court: U.S. District Court — District of Columbia

125 F. Supp. 284

Kendrick M. COLE, Plaintiff, v. Philip YOUNG, Chairman, United States Civil Service Commission, et al., Defendants.

Civ. A. No. 2296-54.

United States District Court District of Columbia.

October 26, 1954.

James H. Heller, Washington, D. C., and David I. Shapiro, New York City, for plaintiff.

Donald B. MacGuineas, Atty., Department of Justice, Washington, D. C., for defendants.

HOLTZOFF, District Judge.

The plaintiff in this action challenges the legality of the procedure for the removal of Government employees in the interest of national security.

The plaintiff was a Food and Drug Inspector, employed by the Food and Drug Administration of the Department of Health, Education and Welfare. Pursuant to the applicable statute and Executive Order, which are hereafter referred to in greater detail, after an interview in which he was interrogated at length, he was served with charges to the effect that he established and continued a close association with individuals reliably reported to be Communists, and maintained a continued and sympathetic association with an organization which was included in the Attorney General's list of subversive groups. He was accorded an opportunity to submit an answer, but declined to do so. The proceedings concluded with a termination of his services by the head of the Department, on the ground that his continued employment was not clearly consistent with the interests of national security.

The plaintiff brings this action to secure reinstatement to his position, claiming that the Executive Order, pursuant to which he was removed, was invalid and that the procedure followed in severing his connection with the Government was not in accordance with law. The pertinent facts are not in dispute and are set forth in the pleadings. Both sides moved for judgment on the pleadings, and the case came on for a hearing on these cross-motions.

The basic statute, under which the plaintiff was removed from office, is the Act of August 26, 1950, 64 Stat. 476, 5 U.S.C.A. § 22-1. Its pertinent portions read as follows:

"Notwithstanding the provisions of section 652 of this title, or the provisions of any other law, the Secretary of State; Secretary of Commerce; Attorney General; the Secretary of Defense; the Secretary of the Army; the Secretary of the Navy; the Secretary of the Air Force; the Secretary of the Treasury; Atomic Energy Commission; the Chairman, National Security Resources Board; or the Director, National Advisory Committee for Aeronautics, may, in his absolute discretion and when deemed necessary in the interest of national security, suspend, without pay, any civilian officer or employee of the Department of State (including the Foreign Service of the United States), Department of Commerce, Department of Justice, Department of Defense, Department of the Army, Department of the Navy, Department of the Air Force, Coast Guard, Atomic Energy Commission, National Security Resources Board, or National Advisory Committee for Aeronautics, respectively, or of their several field services: * * *." (Emphasis supplied.)

The statute prescribes the procedure to be followed in notifying the employee of the reasons for his suspension and giving him an opportunity to submit statements and affidavits in opposition within 30 days after such notification. It further provides for a hearing, then for a review of the case by the agency head or some official designated by him, and finally for a written statement of the decision of the agency head, whose determination was to be final. The statute concludes, 5 U.S.C.A. § 22-3, as follows:

"The provisions of sections 22-1 to 22-3 of this title shall apply to such other departments and agencies of the Government as the President may, from time to time, deem necessary in the best interests of national security. * * *"

To summarize succinctly the pertinent provisions of the Act, it empowers the heads of the specified Government departments and agencies in their absolute discretion and when deemed necessary in the interests of national security, to suspend any officer or employee of that department or agency, and then, after completion of the specified procedure, to remove him from office. The President is authorized to extend the statute to such other departments and agencies as he may deem necessary in the best interests of national security.

Acting pursuant to this authority, the President on April 27, 1953, issued Executive Order No. 10450, 5 U.S.C.A. § 631 note, which extended the provisions of the Act "to all other departments and agencies of the Government." This direction is preceded by a recital that the President deemed such action necessary in the best interests of national security. An examination of this Executive Order and its comparison with the statute, inescapably lead to the conclusion that the Order is within the orbit of the Act of Congress. The statute authorized the President to extend it to such other departments and agencies as he might from time to time deem necessary in the best interests of national security. On the basis of a finding that he deemed such action necessary in the best interests of national security, he extended the provisions of the Act to all other departments and agencies of the Government, that is to all departments and agencies of the executive branch of the Government in addition to those enumerated in the Act. This he had the power to do under the very terms of the statute.

It must be recalled that Article II, Section 1, of the Constitution provides that "The executive Power shall be vested in a President of the United States of America". Section 3 of Article II provides that, "he shall take Care that the Laws be faithfully executed". Under the authority vested in him by these two provisions, the President is empowered to remove in his own discretion any officer or employee of the Executive branch of the Government whom he or any of his predecessors has appointed.¹ The head of an executive department or agency may pursue a similar course as to the employees appointed by him or his predecessors, except to the extent that this power is limited by an Act of Congress. In the early years of the Republic it was not customary to remove Government officers or employees, but it was assumed that they would continue in their positions indefinitely. In fact, history records that President Thomas Jefferson in reply to an importunity for an appointment to office, replied that there were no vacancies because "few die and none resign". With the advent of President Andrew Jackson, the policy of the Government radically changed. From that time on, it was customary for an incoming administration to make numerous changes in the personnel of Government departments and agencies purely for political reasons and for purposes of patronage. Holding political views contrary to those of the administration in power was considered sufficient ground for removal from office. As the complexities of Government increased, the realization gradually grew that the development of a career service was necessary...